LESLIE N. CROUCH, f/k/a Leslie N. Smick, Petitioner-Appellee,
GABRIEL B. SMICK, Respondent-Appellant
Appeal from the Circuit Court of Madison County. No. 09-D-544 Honorable Keith Jensen and Honorable Dean E. Sweet, Judges, presiding.
In proceedings under the Uniform Child-Custody Jurisdiction and Enforcement Act arising from a situation in which the mother of two children and her new husband moved to California following the dissolution of her marriage to respondent, the children's father, in Illinois after he suffered a series of strokes that left him in a wheelchair and unable to communicate and she then filed a petition in California to declare the children free from the custody and control of their father, her new husband filed a petition to adopt the children and respondent filed a motion in Illinois to clarify and retain jurisdiction, the case was transferred to Illinois when the Illinois judge, in consultation with the California judge, issued an order declaring that Illinois would retain jurisdiction of the parties and subject matter and that the mother's petition would be decided according to California law, but the appellate court reversed and remanded the cause to allow the mother to file a petition to terminate respondent's parental rights under Illinois law and order a new hearing under Illinois law, since Illinois was the home state under the UCCJEA.
For Appellant: Tim Kalinowski, Attorney at Law, Glen Carbon, IL.
For Appellee: Frederick M. Steiger, Steiger Law Offices, Edwardsville, IL; Sara R. Neumann, Attorney at Law, San Diego, CA.
Honorable Bruce D. Stewart, J. Honorable Richard P. Goldenhersh, J., and Honorable S. Gene Schwarm, J., Concur.
Bruce D. Stewart, Judge.
[¶1] Leslie Crouch and Daniel Crouch, her husband, filed a petition in the superior court of the State of California to declare Leslie's minor children free from the custody and control of their father, Gabriel Smick. Daniel filed a companion petition for adoption of the children. Gabriel filed a statement in opposition to the petition. He then filed a motion in Illinois to clarify and retain jurisdiction. Following consideration of arguments, briefs, and consultation between the presiding judge in Madison County, Illinois, and the presiding judge in San Diego County, California, the court in Illinois issued an order declaring that Illinois would retain jurisdiction over the parties and subject matter and that the petition to free the minor children from the custody and control of Gabriel would be decided in accordance with California law. The same day, the court in California entered an order deferring to the Illinois court to hear Leslie's petition to declare the minors free from Gabriel's custody and control and transferring the California case to Illinois.
[¶2] After a hearing, the trial court granted the petition to free the minor children from Gabriel's custody and control. Gabriel filed a motion to reconsider. Leslie and Daniel filed a response to the motion to reconsider. The motion to reconsider was denied. Gabriel filed a timely notice of appeal.
[¶3] Gabriel raises numerous issues regarding the termination of his parental rights. First, he asserts that the trial court erred in applying California law. We find this issue to be dispositive. The issue of which state's law applies in child custody proceedings under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) (750 ILCS 36/101 et seq. (West 2012)), once Illinois is determined to have jurisdiction as the home state, appears to be a question of first impression. We hold that once Illinois is determined to be the home state under the UCCJEA, Illinois law applies. Since the trial court erred in applying California law in these proceedings, the judgment must be reversed and this cause remanded for further proceedings applying Illinois law.
[¶5] Leslie and Gabriel were married on June 4, 2005. Two children were born of the marriage: Xander Y. Smick, born August 30, 2006, and Wilhemina Smick, born July 9, 2008. In April 2009, Gabriel suffered a series of strokes that left him wheel-chair bound and unable to communicate.
[¶6] On June 1, 2009, Leslie filed a petition for dissolution of marriage in the circuit court of Madison County, Illinois. Gabriel filed a counterpetition for dissolution of marriage. On July 8, 2010, the circuit court of Madison County entered a judgment of dissolution of marriage. Leslie was awarded legal, physical, and residential custody of the minor children. Gabriel was granted rights of visitation.
[¶7] On December 22, 2010, Leslie filed a motion to divest jurisdiction pursuant to the UCCJEA. She alleged that she and the children relocated to Missouri to be closer to her job, that due to Gabriel's disability he was not actively involved in the children's lives, that substantially all of the evidence concerning the children's care, ...